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Durga Das Vs. Muni Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 276 of 1952
Judge
Reported inAIR1953P& H133
ActsCode of Civil Procedure (CPC) , 1908 - Sections 144 - Order 21, Rule 93
AppellantDurga Das
RespondentMuni Lal and ors.
Appellant Advocate H.L. Saibl, Adv.; Custodian Evacuee Property, Jullundur, through;
Respondent Advocate K.C. Nayar, Adv.
DispositionPetition dismissed
Cases ReferredJai Berham v. Kedar Nath
Excerpt:
.....& a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....and was purchased by durga das. the sale was confirmed and after the confirmation of the sale the auction-purchaser paid rs. 2000/-to munni lal, the previous mortgagee, and got the property redeemed. this was on 1-11-1948. the custodian then stepped in and on his application the sale was set aside on 31-7-1950.3. durga das thereupon applied to the refund of rs. 3,100/- paid by him as auction money and rs. 2,000/- paid by him for redemption of the mortgaged property.4. in this petition we are not concerned with the refund of the purchase price because that has been ordered. the only point in dispute is whether in these proceedings the court . could order the repayment of rs. 2,000/- which the auction-purchaser had paid to the decree-holder who also happens to be the mortgagee of the.....
Judgment:

Kapur, J.

1. This is a rule directed against an order passed by Mr. Jasmer Singh dated 21-4-1952 refusing to order the refund of Rs. 2,000/- to the petitioner.

2. One Munni Lal in execution of his decree for money against Nur Muhammad got certain property attached which was under mortgage with him (Munni Lal). On 27-8-1948 the equity of redemption was sold for Rs. 3,100/- and was purchased by Durga Das. The sale was confirmed and after the confirmation of the sale the auction-purchaser paid Rs. 2000/-to Munni Lal, the previous mortgagee, and got the property redeemed. This was on 1-11-1948. The Custodian then stepped in and on his application the sale was set aside on 31-7-1950.

3. Durga Das thereupon applied to the refund of Rs. 3,100/- paid by him as auction money and Rs. 2,000/- paid by him for redemption of the mortgaged property.

4. In this petition we are not concerned with the refund of the purchase price because that has been ordered. The only point in dispute is whether in these proceedings the Court . could order the repayment of Rs. 2,000/- which the auction-purchaser had paid to the decree-holder who also happens to be the mortgagee of the property. The learned Judge has held that this repayment could not be ordered and the auction-purchaser has come up in revision to this Court.

5. The contention raised is that it was because of the action of the Court that the petitioner paid Rs. 2,000/- to the previous mortgagee and had it not been for the sale which took place he would not have so paid. It Is unfortunate that a sale which had become perfected according to law then prevailing was allowed to be set aside, but that is not a matter before me at present. All I am concerned with is whether the Court had any jurisdiction to order the refund of Rs. 2,000/- which was claimed by the petitioner on account of his having redeemed the property. I am aware of no law and none has been quoted which would show that in cases such as this the Court has jurisdiction to order repayment of monies pai^ for redemption.

6. In a Letters Patent Appeal, -- 'NiadarMal v. Rattan Lal', 8 Lah 356, the constructionplaced upon the word 'restitution' by Mr.Justice Addison was approved of and Broadway J. said at p. 359:

'* * * 'restitution' implies restoration to n party of what has been lost to him in execution of a decree or directly in consequence of that decree.'

There Rattan Lal had made a certain payment to this Custodian of Evacuee Property which he induced him to refund on a certain condition. After the refund had been made the Custodian insisted on Niadar Mal paying up the full amount of the claim of a third party. This payment was held not to have been made in execution of or in consequence of any decree and the fact was also taken into consideration that Rattan Lal was not in possession of any property or money which he had taken out of the possession of Niadar Mal by virtue of any decree or order of the Court and therefore restitution was not allowed to Niadar Mal. The learned Judge relied upon -- 'Baikuntha Nath v. Prosonnamoyi Debi', 51 Cal 324.

7. My attention has also been drawn to a judgment of the Privy Council in -- 'Jai Berham v. Kedar Nath', 69 Ind Cas 278 (P C) where it was held that an auction-purchaser in an execution sale is entitled to repayment of purchase money paid inio Court as a condition precedent to his handing over possession of the property to the judgment debtor. But a payment made by the auction-purchaser to clear off a bond charged on the property purchased by him without any order of the Court cannot be made a condition precedent to restoration Ho the judgment-debtor.

8. In my opinion no case has been made out for varying the order of the executing Court.

9. I would therefore dismiss this petitionand discharge the rule with costs.Petition dismissed.


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